In 1890, lawyers Warren and Brandeis, wrote an influential paper discussing the support within the common-law for a right to privacy.2 They considered the many similar protections already afforded by the torts of libel, slander and defamation and their homogenous support of a tort of privacy. They believed the press was overstepping the ‘bounds of proprietary and decency’,3 dealing in a prurient trade of gossip, stepping so low as to portray ‘details of sexual relations’.4

Privacy has not attained the great heights which Warren and Brandeis envisaged — instead the media is hacking phones,5 corporations are collecting masses of metadata6 and governmental spy agencies have been accessing and retaining metadata and communications of ordinary citizens the world over.7

Every detail of life is either retained in some form by governments and/or large corporations or at least accessible without permission or judicial check. Data is collected, analysed and retained, granting unsurpassed insight into the most personal of details and thought. How would Warren and Brandeis8 have felt in today’s transparent world? A world which, with the aid of the documents released by Edward Snowden,9 has shown privacy stripped bare — nearly every last shred of dignity and decency has vanished. No longer is there a ‘right to be let alone’, or a right to be forgotten — it appears everybody does indeed know everything about everyone10 and the right to have a private life has gone.

This paper will discuss the secret retention of metadata and content, discover whether jurisprudence establishes the privacy of such data, consider the legislative controls of Australian Intelligence Communities (‘AIC’)11 and expose the ramifications for democracy under Australia’s constitutional monarchy.

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